Parham v. Raleigh County Bd. of Educ.

Citation453 S.E.2d 374,192 W.Va. 540
Decision Date16 December 1994
Docket NumberNo. 22252,22252
CourtSupreme Court of West Virginia
Parties, 97 Ed. Law Rep. 536 Thomas PARHAM, Plaintiff Below, Appellant, v. RALEIGH COUNTY BOARD OF EDUCATION, Defendant Below, Appellee.

Syllabus by the Court

1. "A final order of the hearing examiner for the West Virginia Educational Employees Grievance Board, made pursuant to W.Va.Code, 18-29-1, et seq. (1985), and based upon findings of fact, should not be reversed unless clearly wrong." Syl. pt. 1, Randolph County Board of Education v. Scalia, 182 W.Va. 289, 387 S.E.2d 524 (1989).

2. The authority of a county board of education to suspend a teacher under W.Va.Code, 18A-2-8 [1990] must be based upon the causes listed therein and must be exercised reasonably, not arbitrarily or capriciously.

Lee Adler, Beckley, for appellant.

Erwin Conrad, Fayetteville, for appellee.

McHUGH, Justice:

This is an appeal from the October 12, 1993, order of the Circuit Court of Raleigh County which affirmed the decision of the West Virginia Education and State Employee Grievance Board, upholding the Raleigh County Board of Education's ten-day suspension, without pay, of the appellant, Thomas Parham. This Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel. For the reasons stated below, the decision of the circuit court is affirmed.

I

Thomas Parham is a biology teacher and head baseball coach at Woodrow Wilson High School (hereinafter "WWHS") in Beckley, West Virginia. A seventeen-year employee of the Raleigh County Board of Education (hereinafter "BOE"), Mr. Parham had never been the subject of disciplinary action nor had he ever been involved in a physical altercation with a student. The record further indicates that Mr. Parham has consistently maintained discipline in his classroom without having to either remove a student or send one to an administrative office for punishment.

On March 4, 1991, Mr. Parham was given his first lunch-duty cafeteria assignment at WWHS. 1 While on duty, Mr. Parham observed a student, C.B., 2 jump ahead of other students waiting in the cafeteria line. Mr. Parham ordered C.B. to go to the end of the line, but C.B. became unruly and verbally abusive to Mr. Parham. Mr. Parham proceeded to take hold of C.B.'s arm to escort him to the office of WWHS Assistant Principal Carleton Spicer. In route to Mr. Spicer's office, C.B. stopped several times, attempting to cause Mr. Parham to run into him. C.B. used abusive and profane language toward Mr. Parham all the way to the office.

The events which subsequently transpired when Mr. Parham and C.B. entered Mr. Spicer's office were disputed by the parties. Mr. Spicer testified that Mr. Parham told him that C.B.'s parents should be called because Mr. Parham was not going to have a student speak to him the way C.B. had. C.B. then shoved Mr. Parham. Though Mr. Parham warned C.B. not to make contact with him again, C.B. pushed him again. It was at that point that Mr. Parham slapped C.B. in the face with the back of his hand. Mr. Spicer testified that Mr. Parham, who was 6'3"' tall and weighed 210 pounds and was quite a bit bigger than C.B., 3 did not appear threatened by or afraid of C.B. Mr. Spicer further testified that, when he later spoke with Mr. Parham about the incident, Mr. Parham never indicated that he had felt threatened by C.B. or that he struck him in self-defense. Finally, Mr. Spicer testified that, instead of striking the student, Mr. Parham should have left the office after C.B. shoved him a second time.

It was Mr. Parham's testimony, however, that he was attempting to explain to Mr. Spicer what had occurred in the cafeteria when C.B., who was standing to Mr. Parham's right, pushed him twice. Mr. Parham testified that he was particularly concerned about being able to protect himself should C.B. strike him a third time because he suffers from a condition called trigeminal neuralgia. This condition, also known as TMJ, has caused numbness on the right side of Mr. Parham's face; therefore, he would not necessarily feel it if he were hit on that side. Consequently, Mr. Parham is overly-protective of the right side of his face. While Mr. Parham testified that he feared for his physical safety throughout the incident and that he struck C.B. in self-defense, he also testified that he "just struck him in the mouth to keep him quiet.... It was only a tap with the back hand, not to physically abuse him but to acquire his attention."

Following this altercation, Mr. Spicer ordered Mr. Parham from his office and another teacher, Neal Lacey, then physically restrained C.B. C.B. suffered a nosebleed but was not otherwise injured.

The Superintendent of Schools for Raleigh County, Dwight Dials, and WWHS Principal, Miller Hall, were immediately informed of the incident. At the direction of Superintendent Dials, Principal Hall conducted an investigation of the incident, which included interviews with all parties involved. Superintendent Dials subsequently met with Principal Hall, Mr. Spicer, Mr. Parham and Mr. Parham's counsel. Though Principal Hall and Mr. Spicer presented what they knew about the incident, Mr. Parham declined to make a statement. At the conclusion of the meeting, Principal Hall recommended that Mr. Parham be suspended for twenty days without pay. However, upon consideration of C.B.'s past disciplinary record 4 and the information discussed in the meeting, Superintendent Dials modified the discipline and suspended Mr. Parham for ten days without pay.

On March 21, 1991, Superintendent Dials presented the matter to the BOE 5 and a hearing was held. Principal Hall, Mr. Spicer, bus driver John Kintsler and WWHS teacher Neal Lacey testified at the hearing. Mr. Parham, while represented by counsel, did not testify. Mr. Kinstler testified that in the afternoon of March 4, 1991, the date of the incident in question, C.B. assaulted a student who had disembarked from his bus. Mr. Kinstler pulled C.B. off the student. As Mr. Kinstler was restraining C.B., C.B. cursed him profusely. Mr. Lacey similarly testified that, on that same day, he completed a disciplinary referral form on C.B. who had disrupted his classroom by talking and refusing to change seats. 6

At the conclusion of the hearing, the BOE upheld the ten-day suspension, by a three-to-one vote, with one member abstaining. By letter dated March 29, 1991, Superintendent Dials informed Mr. Parham of the BOE's action and advised him that such action was taken "for reasons of neglect of duty; insubordination; and striking a student." C.B. was suspended from school for ten days and his father, subsequently, filed a battery warrant against Mr. Parham with the Raleigh County magistrate's office. Chief Deputy Prosecuting Attorney Kristen Keller interviewed both C.B. and his father in preparation for a hearing on the battery charge. When, during the interview, C.B. admitted that he had shoved Mr. Parham first, the complaint was withdrawn. An order of dismissal was issued by Magistrate Lorena Wallace, on March 22, 1991.

By letter dated March 26, 1991, Mr. Parham's counsel asked the BOE to reconsider its decision in light of the magistrate's order dismissing the battery charge. The BOE declined to rescind or modify its decision.

On May 9, 1991, this case was heard before the West Virginia Education and State Employee Grievance Board (hereinafter "Grievance Board"). On November 7, 1991, Hearing Examiner Jerry A. Wright issued his decision, which upheld the BOE's actions in all respects. Specifically, Hearing Examiner Wright found that Mr. Parham's statement, on direct examination, that he struck C.B. to acquire his attention and to keep him quiet were illustrative of his motives. Consequently, Hearing Examiner Wright determined that Mr. Parham's assertion that he acted in self-defense cannot be accepted. Hearing Examiner Wright further found Mr. Spicer to be a credible witness and, thus, accepted his testimony that C.B. only lightly shoved Mr. Parham and that Mr. Parham struck him out of anger rather than fear.

By order of October 12, 1993, the Circuit Court of Raleigh County affirmed the decision of the Grievance Board. See W.Va.Code, 18-29-7 [1985]. It is from that order that Mr. Parham now appeals.

II

Mr. Parham contends that the hearing examiner's conclusion that he did not act in self-defense when he struck C.B. was not supported by the evidence. It has been our traditional rule that evidentiary findings made at an administrative hearing should not be reversed unless they are clearly wrong. 7 Accordingly, in syllabus point 1 of Randolph County Board of Education v. Scalia, 182 W.Va. 289, 387 S.E.2d 524 (1989), we held: "A final order of the hearing examiner for the West Virginia Educational Employees Grievance Board, made pursuant to W.Va.Code, 18-29-1, et seq. (1985), and based upon findings of fact, should not be reversed unless clearly wrong." 8 See also syllabus, Parker v. Summers County Bd. of Educ., 185 W.Va. 313, 406 S.E.2d 744 (1991); syllabus, Sexton v. Marshall University, 182 W.Va. 294, 387 S.E.2d 529 (1989). While the facts concerning Mr. Parham's motives for striking C.B. were disputed, the testimony of Mr. Spicer and of Mr. Parham himself reveal that there was substantial, reliable and probative evidence justifying the hearing examiner's finding that Mr. Parham did not strike C.B. in self-defense. See Scalia, supra.

As we indicated above, it was Mr. Spicer's testimony that Mr. Parham did not appear to be threatened by or afraid of C.B. after C.B. had shoved him. Mr. Spicer further testified that, in subsequent conversation about the incident, Mr. Parham never indicated that he had felt threatened or that he struck C.B. in self-defense. More significantly, in his own testimony, Mr. Parham stated that he struck C.B. to keep him quiet and "to acquire his attention." While we recognize...

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